Jennifer Holligan is a Scottish lawyer
currently working as a Legal Associate for Access to Justice Asia. She
is based in Phnom Penh and is a member of a legal team representing victims
before the Extraordinary Chambers in the Courts of Cambodia.

Tarik Abdulhak is an Australian lawyer, currently working as
a Senior Assistant Prosecutor at the Extraordinary Chambers in the Courts of
Cambodia.*

The exact origins of the Khmer people, the majority ethnic
group inhabiting present-day Cambodia, are the subject of some debate among
historians, one view being that the pre-historic inhabitants of the region
migrated from China, and the other that they in fact came from India. In any
event, starting around 2,000 years ago, the inhabitants of the region were
subject to important religious, cultural and political influences of India. The
Khmer people developed an alphabet based on the Pallava script of India, adopted
the Hindu religion (today most Khmers are Theravada Buddhists), and benefited
from Indian advances in science, engineering and architecture. The most famous
example of the impact of these influences on the Khmer architecture is Angkor
Wat, the “city-temple” located in the ancient Khmer kingdom’s capital (near
today’s Siem Reap), and built during the reign of the emperor Suryavarman II in
the 12th century AD.

The Angkor Wat and dozens of other temples and buildings
that surround it stand as historical monuments to the great Khmer empire whose
existence extended from the early 9th century to the middle of the
15th century. At various stages of the period, this was South East
Asia’s most powerful kingdom. However, for reasons that are still not fully
understood, from the 15th century the Khmers abandoned Angkor and
migrated southward, establishing a new capital at Udong, 40 kilometres north of
Phnom Penh. While data on the ensuing period is limited, available records
indicate that Cambodia experienced a period of gradual decline. Located at the
juncture of two major spheres of cultural influence – that of Theravada
Buddhism to the West (predominant in Thailand) and the Vietnamese empire to the
East – the Khmer kingdom eventually saw its sovereignty undermined by its
dominant neighbours. Over the seventeenth and eighteenth centuries, the country
experienced civil wars, while Thai and Vietnamese kingdoms took turns in
invading it. The Vietnamese instituted a program of Vietnamisation of Cambodia
in the early 19th century, which ended in 1841 and was followed by a
short period of relative independence under Thai influence.

In 1863, Cambodia’s King Norodom signed an agreement with
the French to establish a protectorate over his kingdom, which led to Cambodia
becoming a French colony. The Japanese occupied Cambodia from 1941 to 1945 and
the French sought to re-assert their control after the end of World War II.
Cambodia’s first written constitution was promulgated in 1947. Under this constitution,
the country was governed by the King and two houses of parliament.

The colonial era ended when Cambodia declared its
independence on 9 November 1953, following King Norodom Sihanouk’s negotiations
with the French. In March 1955, the King abdicated in favour of his father,
Norodom Suramarit, and formed Sangkum Reastr
Niyum (“People’s Socialist Community”), a political party, which
won an overwhelming victory in the national elections, held in September 1955.
In 1960, following his father’s death, Norodom Sihanouk again became the head
of state (this time with the title of Prince).

A key 20th century development was the rise of the
Cambodian communist movement, which had its origins in the Indochinese
Communist Party, formed in Vietnam in 1930. In 1951 a Cambodian branch was
formed. While the party’s internal structure and name underwent a number of
changes over the years, the party eventually adopted the name Communist Party
of Kampuchea (CPK). Internationally, members of the CPK became known as the
Khmer Rouge, a label given to them by Norodom Sihanouk. The Party’s leadership
included several young people who had studied in France on Cambodian
scholarships during the 1950s. A member of this group was Saloth Sar, who would
rise to become the CPK leader and come to be known throughout the world under
his revolutionary name, Pol Pot. Especially from the 1960s onward, the communists
became engaged in a struggle of increasing intensity against Sihanouk’s regime.
They adopted a policy of revolutionary violence designed to bring down those whom
they saw as feudalists, capitalists and reactionaries.

In 1963, the leadership of the CPK went underground and
withdrew from the capital to coordinate an insurgency from the countryside. At
the end of the decade, Prince Sihanouk’s own fortunes changed. In March 1970, his
Prime Minister Lon Nol convened the National Assembly, which voted to remove
the Prince as the head of state. In 1972, a new state, the Khmer Republic, came
into being. The regime, which enjoyed the support of the United States of
America, would pursue disastrous military campaigns against Vietnamese
communist forces on Cambodian soil. It also fought a bloody civil war against the
CPK and its supporters.

Angered by American bombing of the Cambodian countryside,
and responding to a call from Norodom Sihanouk (who brokered a deal with the CPK
following his removal from power), thousands of young Cambodians joined CPK forces
in the war against the Khmer Republic regime. The civil war ended on 17 April
1975 when the victorious communist forces entered Phnom Penh.

From April 1975 to January 1979, the CPK presided over the
most tragic phase of Cambodia’s history. Immediately upon taking power, the new
authorities forcibly evacuated the urban centres, and enslaved the entire
population in CPK-run rural cooperatives and construction sites, effectively turning
the entire country into a massive prison.

In January 1976, the CPK established Democratic Kampuchea
(DK), a state in which virtually all vestiges of Cambodia’s centuries-old
social order were abolished. Among other things, the authorities broke up
families, prohibited religion, closed down markets, schools and universities,
abolished all human rights and civil liberties, and persecuted (and eventually sought
to annihilate) the Vietnamese and Cham minority groups. Cambodians were
subjected to constant psychological abuse through indoctrination and monitoring
by CPK cadres. The regime put in place a countrywide network of security
centres in which hundreds of thousands of suspected “traitors” and perceived
enemies were systematically imprisoned, tortured and executed. It is estimated
that nearly two million people – or one in four Cambodians – died
as a result of starvation, illness and execution over the 3 years, 8 months and
20 days that the CPK governed Cambodia. This shocking death toll was the direct
result of the regime’s policies whose implementation was centrally coordinated.

Throughout this period, CPK / DK forces were engaged in an
armed conflict with the Socialist Republic of Vietnam (SRV), fueled by a series
of factors, including a territorial dispute between the communist neighbours.
In December 1978, SRV forces mounted a massive invasion with the support of Cambodians
who had fled DK rule. They entered Phnom Penh on 7 January 1979, liberating
Cambodia from CPK’s reign.

As the CPK leadership and its followers fled Phnom Penh, a
new state, the People’s Republic of Kampuchea (PRK), was established with
Vietnamese support. Tragically, however, the toppling of the DK regime did not
mark an end to warfare and humanitarian strife in Cambodia. Operating from
camps in the country’s remote regions bordering Thailand, the CPK formed a
coalition with other political movements opposed to the Phnom Penh regime,
re-constituted its armed forces, and fought a civil war against the PRK (and
its successor regimes, the State of Cambodia and the Kingdom of Cambodia) well
into the 1990s.

Following protracted negotiations between several Cambodian
political factions, the Agreements on the Comprehensive Political Settlement of
the Cambodia Conflict (known as the Paris Peace Agreements) were signed on 23
October 1991. The United Nations Security Council was invited to establish the
United Nations Transitional Authority in Cambodia (UNTAC), which would oversee
the implementation of the Agreements, temporarily run the country’s
administration, and coordinate free elections and a restoration of law and
order. One of the largest missions in United Nations’ (UN) history, UNTAC
exercised supervision over various aspects of Cambodia’s government, including
information, finance, foreign affairs and security, and was to disarm the
various fighting factions. It failed to disarm the CPK forces, however, which
allowed them to continue their military campaigns, and in fact make territorial
gains as the civil war wore on.

Despite attempts by the Khmer Rouge to block them,
national elections were held in 1993, leading to the formation of a coalition government
led by Prince Ranariddh (son of Norodom Sihanouk) and Hun Sen as First and
Second Prime Ministers respectively. Following its adoption by the new
parliamentary assembly, a new constitution was promulgated on 24 September
1993, establishing the Kingdom of Cambodia, a constitutional monarchy with a
democratic, multiparty political system. Prince Norodom Sihanouk was again
elevated to the status of King and resumed his position as Cambodia’s head of
state. He abdicated in 2004, and was replaced by his son, Norodom Sihamoni,
Cambodia’s current King.

Cambodia’s legal system, which is primarily based on the
French civil law tradition, suffered significant setbacks as a result of CPK policies
during the 1975 - 1979 period. In setting up the state of Democratic Kampuchea,
the CPK abolished virtually all institutions existing under Cambodia’s previous
regimes, including the courts. Although
DK’s constitution provided for the establishment of “people’s courts,” no judicial
institutions were in fact established, and no laws were ever enacted. In
place of a legal system, the CPK instituted a centralised dictatorship, which
exercised absolute power over the country and governed every aspect of its
citizens’ lives. As noted above, dissidents were dealt with through the
regime’s network of security centres. As intellectuals were among those
targeted by the regime for elimination, Cambodia lost the majority of its legal
professionals in this period. Re-established following the toppling of the DK
regime, the country’s legal institutions are still in a process of transition.

An important development to provide accountability for
atrocities committed during the DK regime was the establishment of the
Extraordinary Chambers in the Courts of Cambodia (ECCC) in early 2006. This
internationalised criminal tribunal was created in accordance with an agreement
between the United Nations and the Royal Government of Cambodia to bring to
trial senior leaders of DK and those most responsible for the crimes that took
place during the period. More information on the ECCC is provided further
below.

Under the 1993 constitution, Cambodia is a constitutional
monarchy with the King as its head of state. The King represents a symbol of
unity and eternity of the nation. The Head of Government is an elected Prime
Minister. Legislative power is vested in a bicameral parliament, while the
judicial power is exercised by a constitutionally independent judiciary.

The territory of Cambodia comprises 24 provinces (rural)
and municipalities (urban) with a total of 185 districts, 1621 communes and
13,694 villages. The 24 provincial and municipal administrations are appointed
by the central government and are a part of the Ministry of Interior. The 2001 Law
on the Election of the Commune/Sangkat Councils provides for elections of
commune level councils. The first such elections were held in February 2002.

In addition to providing for a separation of executive,
judicial and legislative powers, the constitution guarantees respect for
citizens’ fundamental rights contained in the Universal Declaration of Human
Rights and other international human rights instruments. Numerous of these
rights are expressly set out in the constitution, and they include the right to
life, the right to freedom of expression and association, the right to peaceful
protest, and the protection of legal ownership. The constitution obligates the
state to respect the rights of children and prohibits all forms of
discrimination against women. It also sets out due process protections such as
the presumption of innocence and equality before the law. Capital punishment is
prohibited.

Cambodia’s Constitutional Council
is responsible for providing interpretations of the Constitution and deciding
on disputes relating to the election of members of the National Assembly and
Senate. A request for a review of the constitutionality of any law may be made
by, among others, the Kink, the Prime Minister, one quarter of the Senators or
one tenth of the members of the National Assembly.

The constitution preserves the validity of previously
enacted legislation to the extent that the latter is not inconsistent with the constitution
itself. Cambodia’s legal system therefore comprises legislation enacted under past
administrations, as well as more recent laws, which have been adopted since
1993 to support the emerging market-based economy. A new Code of Criminal
Procedure was enacted in 2002, and a new Penal Code entered into force in
December 2010.

Cambodia's executive government is formed by the party who
acquires the greatest number of seats in the National Assembly at election. The
Prime Minister, who is a member of the Assembly, is appointed by the King on
the recommendation of the President and Vice Presidents of the National
Assembly. Upon entry into office, the Prime Minister appoints a Council of
Ministers. The current Prime Minister is Cambodia People Party’s (CPP) Hun Sen.

The Senate is the upper house of the
Cambodian legislature and has 61 members. Two of these are appointed by the
King, two are elected by the lower house of Parliament, and the remaining fifty-seven
are elected through non-universal elections, by commune councilors throughout
the country and members of the National Assembly. Members of the Senate serve six-year
terms, and the first elections were held in 2006. The CPP holds forty 43 in the
Senate. The two other major parties holding seats in the Senate are Funcinpec (12
seats) and the Sam Rainsy
Party (two seats). The next elections for the Senate are due
to take place in January 2012.

The National Assembly

The National Assembly consists of 123
members who serve five-year terms upon election. The President and two Vice
Presidents of the Assembly are elected by the members. As of 2009, the CPP
holds 90 out of the 123 seats. The Sam Rainsy Party
holds 26 seats.

Following the toppling of the DK
in 1979, people's revolutionary courts were established on an ad hoc
basis by the PRK regime. Establishment of a more institutionalised system did
not take place until 1982 when a law providing for the organisation of courts
and the Office of the Public Prosecutor
was promulgated. Under this law, a network of courts was extended to each
province and municipality and the People’s Supreme Court was created as the
highest court of the land. The arrival of UNTAC in 1992
brought further important changes to the judicial system in Cambodia, including
the creation of an Appeal Court. This resulted in a three-tiered court system,
consisting of courts of first instance (municipal, provincial or military
courts), the Appeal Court and the Supreme Court. As noted above, the 1993 constitution
provides for the independence of the judiciary from the executive and the legislature.

The territorial jurisdiction of provincial
and municipal courts covers their respective provinces and municipalities,
while the military court has jurisdiction over the entire country. Judgments of
these courts of first instance can be appealed on questions of fact and law to
the Appeal Court. The Supreme Court generally adjudicates
only questions of law on appeal from the Appeal Court.

A Supreme Council of Magistracy
has been established in accordance with the 1993 constitution. Chaired by the
King, the Council is responsible for the appointment of judges and prosecutors
at all levels, and for the adjudication of disciplinary actions against them.
When dealing with disciplinary matters, the Council convenes under the
chairmanship of the President of the Supreme Court (or, if the action is
against a prosecutor, under the chairmanship of the General Prosecutor).

Although the Constitution guarantees the independence of
the judiciary, concerns have been raised as to lingering systemic weaknesses
within the judicial branch of government. These weaknesses, and their origins
in the decades of armed conflict, were noted in a 28 January 2011 decision of
the ECCC Trial Chamber dealing with a request for the disqualification of the
Chamber’s presiding judge. A United Nations Special Rapporteur on the Situation
of Human Rights in Cambodia commented in a 17 June 2010 statement that: “a
combination of a lack of adequate resources, organizational and institutional
shortcomings, a lack of full awareness of the relevant human rights standards,
and external interference, financial or otherwise, in the work of the
judiciary, has resulted in an institution that does not command the confidence of
people from many walks of life.” The Royal Government of Cambodia has made
legal and judicial reform one of its stated priorities, and the establishment
of the ECCC was a significant step in the process of building capacity within
the domestic system.

On 21 June 1997, the Cambodian
government requested the UN to assist in establishing a tribunal to prosecute
those responsible for crimes committed during the DK period. In 2001, the
National Assembly passed a law (“ECCC Law”) which provided for the
establishment of the ECCC. An Agreement between the Cambodian Government and
the UN (“the Agreement”) was signed in June 2003. The Agreement regulates the
cooperation between theUN
and the Royal Government of Cambodia, and deals with, among other matters, the ECCC’s jurisdiction,
composition of its chambers, decision making and applicable penalties. In
October 2004, amendments to the ECCC Law were enacted and approved by the
Constitutional Council, and the Agreement was ratified. This led to the formal
establishment of the ECCC in early 2006.

The ECCC is one of a handful of internationalised criminal
tribunals established to process
mass atrocity cases. It has a number of distinguishing features, which set it
apart from international criminal tribunals for the former Yugoslavia, Rwanda
and Sierra Leone. While formally a part of the Cambodian court system, the ECCC
has its own separate jurisdiction, is independent of the Appeal and Supreme
Court, applies international law, and is constituted by Chambers comprising
national and international judges. The Co-Prosecutors’ Office is jointly led by
an international prosecutor and a national prosecutor. While existing criminal
procedure applies before the Court, if that procedure does not deal with a
particular matter, or if there is a questionregarding its consistency with international standards,
guidance is sought inrules
established at the international level.

The ECCC has jurisdiction over specific offences set out in
the 1956 Cambodian Penal Code (murder, torture and religious persecution), as
well as international crimes of genocide, crimes against humanity and grave
breaches of the 1949 Geneva Conventions. The ECCC is the first
internationalised criminal court, which uses the civil law criminal procedure
with investigations carried out by an Office of the Co-Investigating Judges,
and provisions allowing for participation of victims as civil parties.

As noted above, the ECCC’s personal jurisdiction extends
to the senior leaders of Democratic Kampuchea and those most responsible for
serious violations of Cambodian penal law, international law and custom during
the DK period. Upon conviction, accused can be sentenced to imprisonment terms
ranging from five years to life imprisonment.

Proceedings before the Court were set in motion on 18 July 2007 when the
Co-Prosecutors filed an Introductory Submission (IS) requesting a judicial
investigation into numerous alleged crimes, including the forced evacuations of
urban centres, and the enslavement, imprisonment, torture and killings of
civilians within security centres and mass forced labour sites. The IS
identified five suspects - Nuon Chea, Ieng Sary, Khieu Samphan,
Ieng Thirith, and Kaing Guek Eav (also known as “Duch”).
Following the commencement of the judicial investigation, the Co-Investigating
Judges ordered the arrests of the five suspects, and then separated the
proceedings against Duch. This resulted in a separate investigation into Duch’s
responsibility for the crimes that took place at S-21, the CPK/DK’s central and
most important security centre, in which more than 14,000 men, women and
children were imprisoned and executed. This became known as Case File 001, with
the investigations against the other four suspects conducted as part of Case
File 002.

Case File 001

The former director of S-21, Kaing Guek Eav, alias Duch, was
arrested by the Cambodian authorities in 1999 and kept in military detention without
trial until his transfer to the ECCC in 2007. His trial at the ECCC started in
February 2009, and closing statements were delivered in November 2009. During
the trial, the court heard extensive testimony from Duch, as well as 33
witnesses and 22 civil parties at public hearings, which were attended by approximately
28,000 visitors. On 26 July 2010, the Trial Chamber rendered its judgment,
finding Duch guilty of persecution as a crime against humanity and grave
breaches of the Geneva Conventions. The Chamber imposed a sentence of 30 years
of imprisonment (after a five-year reduction as a remedy for Duch’s unlawful
detention by the Cambodian authorities). Given that, at the time of judgment, he
had already been detained for 11 years, Duch will serve another 19 years,
subject to the outcome of the appeal proceedings, which were in progress at the
time of writing (March 2011).

Both Duch and the Co-Prosecutors have appealed the Trial
Chamber’s judgment before the ECCC Supreme Court Chamber. Duch’s defence team
has argued on appeal that he was beyond the Court’s jurisdiction, and should be
released. The prosecutors have argued, among other things, that the Trial
Chamber committed an error by subsuming individual crimes (including murder and
torture) under persecution as a crime against humanity, and by failing to
sentence Duch to 40 years imprisonment as requested by the prosecution at the
end of the trial.

Case File 002

On 15 September 2010, the Co-Investigating Judges indicted
Nuon Chea, Ieng Sary, Khieu Samphan and
Ieng Thirith for genocide, crimes against humanity, war crimes, and
violations of the 1956 Cambodian Penal Code. The four accused, who have been in
pre-trial detention since 2007, are the surviving senior members of the CPK and
the DK government. Among the many positions they held, Nuon Chea was the Deputy
Secretary of the CPK, Ieng Sary Minister for Foreign Affairs, Khieu Samphan the
Chairman of the State Presidium, and Ieng Thirith the Minister for Social
Affairs.

The four accused filed appeals against the indictment,
which were largely rejected by the ECCC Pre-Trial Chamber, and the case was
forwarded to the Trial Chamber on 14 January 2011. The trial is expected to
commence in mid 2011.

Cases 003 and 004 are currently in the judicial
investigation phase, which is confidential. They were the subject of proceedings
before the Pre-Trial Chamber, which arose out of a disagreement between the
National and International Co-Prosecutor as to whether to proceed with additional
ISs. A public, redacted version of the Pre-Trial Chamber’s considerations issued
on 18 August 2009 is available on the ECCC website (under Court Documents >
Pre-Trial Chamber).

As in other countries with a
continental legal system, legislation is the primary source of law in Cambodia.
Other sources of law include the Constitution, custom, government decrees and
regulations adopted under UNTAC, and human rights conventions ratified by
Cambodia.

Under the 1993
constitution, the Cambodian government is required to recognise and respect the
human rights set out in the covenants dealing with human rights, women’s rights
and children’s rights. In 2007, the Constitutional Council issued a ruling stating
that the law applicable before domestic courts is to include the constitution
as the supreme law, and the international human rights treaties recognised by
Cambodia.

Domestic custom

Custom may influence the application of the law in
Cambodia. One example of this is Article 23 of the Law on Contract, which
stipulates that, if the meaning of a
contractual provision is not clear, it shall be interpreted according to
common practices or customs of the place where the contract was made.
Furthermore, the Khmer tradition of conciliation beginning at the village level
remains a part of the dispute resolution process. Conflicts are often dealt
with at village level first before being heard by a court of first instance.

UNTAC Regulations

During the transitional period described under “Post-DK
period to present day” above, a Supreme National Council (SNC) was established
under the Peace Paris Agreements. Under the terms of the Agreements, the “SNC
represent[ed] the unique legitimate body and source of authority in which,
throughout the transitional period, the sovereignty, independence and unity of
Cambodia are enshrined.” The SNC represented Cambodia at the United Nations and
delegated its powers to UNTAC during the transitional period until the election
of a new government. During this period,
laws such as the 1992 Electoral Law were drafted by UNTAC and adopted by the SNC. Laws adopted
during this period remain in power until their replacement by laws enacted by
Cambodia’s parliament.

Cambodia is a party to numerous international treaties and
conventions, including the following treaties relevant to protection of human
rights:

·International
Covenant on Civil and Political Rights

·International
Covenant on Economic Social and Cultural Rights

·International
Convention on the Elimination of All Forms of Racial Discrimination

·Convention on
the Elimination of Discrimination against Women

·Genocide
Convention 1948

·ICC Rome
Statute 1998

·Geneva
Conventions 1949

·Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

·Convention on
the Rights of the Child

International treaties are ratified by the King
following a vote of approval by the National Assembly.

5. LEGAL
RESOURCES

Given that, Cambodia is still a country in transition,
electronic and hard copy legal resources are relatively limited. Nevertheless,
a number of useful texts are available, legislation in a number of areas can be
found online, and several websites provide useful information on the set-up and
activities of Government ministries.

The UN Office of the High Commission for Human Rights
publishes a compilation of laws and other legal instruments relevant to the
administration of justice and institutional development in Cambodia. The
compilation also contains the text of the main international human rights
treaties to which Cambodia is a party, as well as the ILO conventions,
extradition treaties, and other international instruments.

An official gazette is published by the General Department
of Official Gazette; however, this is not available online.

English language sources

Numerous laws are available online in the English
language, including Land Law, Law on Nationality, Law on the Investment of the
Kingdom of Cambodia, Law on Taxation, Labor Law, Law on Insurance, Law on Foreign
Exchange,
Law on
Marriage & Family, Trademark Law, Law on Land Management, Urban Planning and Construction, Law on
Mineral Resource Management and Exploitation, and Law on the Dividing of Property